11 Blatchf. 124 | U.S. Circuit Court for the District of Southern New York | 1873
This case presents a question which, so far as I am aware, has never been adjudicated in the United States, nor in any of the countries with which the United States has treaties containing provisions for the extradition of persons charged with crimes. The language upon which that question arises, is found in numerous treaties between the United States and foreign countries, and in some treaties between Great Britain and other countries in Europe. I have, therefore, bestowed upon the matter a good deal of attention, for the purpose of arriving at a conclusion, not only satisfactory to myself, but one which, in view of the importance of the question, might be supported by. reasons which should commend it as a proper decision.
On the 29th of November, 1872, the secretary of state, on the application of the minister plenipotentiary of the German empire, issued his certificate, commonly called a “mandate,” which sets forth, that, pursuant to the first article of the convention' between the-United States and Prussia, and other states of the Germanic confederation, of the 16th of June, 1852, the said minister had made application to the government of the United States for the arrest of Joseph Stupp alias Garl Vogt, charged with the crimes of arson, murder and robbery, and alleged to be a fugitive-from the justice of the German empire, and that it appears proper that he should be apprehended, and the case examined in the mode provided by the acts of congress of August 12, 1848 (9 Stat. 302), and June 22, I860-(12 Stat. 84), and then states, that, to the end that the officers to whom the mandate is directed may cause the necessary proceedings to be had in pursuance of said acts, in order that the evidence of the criminality of the said accused may be heard and considered, and, if deemed sufficient to sustain the charge, that the same may be certified, together with a copy of all the proceedings, to the secretary of state, that a warrant may issue for his surrender, pursuant to said convention, the facts above recited are certified.
This mandate was presented to a duly authorized United States commissioner, and, at the same time, a verified complaint in writing was made by Mr. Johannes Boesing, the consul general of the German empire. This complaint sets forth, that Mr. Roesing is, ex of-ficio, “consul general of each of the states composing the German empire, that the kingdom of Prussia is one of the states composing said empire, and this complainant is, ex of-ficio, the consul general of said kingdom at said city of New York, for the United States of America; that, as this complainant, from official evidence in his possession, and other reliable information received, is informed and believes, one Joseph Stupp alias Carl Vogt, a native of the said kingdom, and since his birth and now a subject of the king of Prussia, did, on or about the first day of October,, in the year eighteen hundred and seventy-one, at the city of Brussels, in the kingdom of Belgium, then being a subject of Prussia, as aforesaid, and within the legal jurisdiction of Prussia, feloniously, and with malice aforethought, kill and murder another person, to wit, the Chevalier Dubois de Bianco, and did there and then feloniously, maliciously, and wilfully set on fire and burn the house of another person, to wit, the dwelling-house of said, the Chevalier Dubois de Bianco, then occupied by him, the said Chevalier Dubois-de Bianco, and did then and thei'e further feloniously and forcibly take from the person of another, to wit, from the person of said Chevalier Dubois de Bianco, by violence, money and personal property of large value, to wit, of the value of six hundred thousand francs, equal to about one hundred and twenty thousand dollars, of the coin of the United' States. And the complainant further shows,, that he is familiar with the laws of Prussia, and that, by said laws, it is expressly provided, that a Prussian subject, who, in a for
This complaint was sworn to on the 7th of December, 1872. Upon it a warrant was issued by the commissioner, on the 9th of December, 1872, reciting the contents of the complaint, and the issuing of the mandate, and directing the marshal of this district to apprehend the prisoner and bring him before the commissioner who issued the warrant, to the end that the evidence of his criminality might be heard and considered. He was arrested and brought before the commissioner on the 10th of April, 1873, and the proceedings were adjourned until the 12th. the prisoner being, in the meantime, committed to the custody of the marshal. On the 12th the proceedings were again adjourned to the 15th, and on the 15th they were again adjourned to the 22d.
On the 15th of April, a petition was presented, on behalf of the prisoner, to me, as sitting in the circuit court for this district, setting forth that the prisoner was restrained of his liberty by the marshal, in pursuance of said warrant, and that the warrant was issued upon the said complaint, and reciting the contents of the complaint, and then averring that the prisoner is not a subject of the king of Prussia, and is not guilty of the charge, and that, admitting the truth of all the allegations against him, he is not amenable to the laws of the kingdom of Prussia, and that the crime which is alleged to have been committed was not committed within the jurisdiction of the kingdom of Prussia, but was committed in Belgium, and that, under the extradition treaty between the United States and Prussia, no crimes are included except those occurring within the territorial limits of the respective governments, and that neither within the spirit nor the letter of the treaty can either government make any demand upon the other for the surrender of an alleged criminal who has committed any crime or offence in a foreign country. The petition prays for a writ of habeas corpus, directed to the marshal, to produce the body of the prisoner, and for a writ of certiorari, directed to the commissioner, to certify the proceedings.
This petition was sworn to on the 14th of April. On the 15th of April, both of the writs were granted. They were made returnable before this court, on the 16th. On that day returns were made to both of them, and the body of the prisoner was produced. The return to the writ of habeas corpus sets
The sole question involved is, as to whether this is a case falling within the treaty between the United States and Prussia. It becomes necessary, therefore, to look at the terms of the treaty. The treaty was concluded on the 10th of June, 1852 (10 Stat 964), and is a special extradition convention between the United States and Prussia, and other states of the Germanic confederation, for “the mutual delivery of criminals, fugitives from justice, in certain cases.” The preamble of the treaty sets forth, that “whereas, it is found expedient, for the better administration of justice, and the prevention of crime within the territories and jurisdiction of the parties respectively, that persons committing certain heinous crimes, being fugitives from justice, should, under certain circumstances, be reciprocally delivered up, and also to enumerate such crimes explicitly, and, whereas, the laws and constitution of Prussia, and of the other German states, parties to this convention, forbid them to surrender their own citizens to a foreign jurisdiction, the government of the United States, with a view of making the convention strictly reciprocal, shall be held equally free from any obligation to surrender citizens of the United States.” That is all that is important in the preamble. The first article of the convention proceeds to say, “that the United States and Prussia, and the other states of the Germanic confederation included in, or which may hereafter accede to, this convention, shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, * * * or arson, or robbery, * * * committed within the jurisdiction of either party, shall seek an asylum, or shall be found, within the territories of the other.” Then follows, in the same article, the usual provision which is found in all of our extradition treaties, “that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed.” The third article is as follows: “None of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention.” The fourth article is in these words: “Whenever any person, accused of any of the crimes enumerated in this convention, shall have committed a new crime in the territories of the state where he has sought an asylum, or shall be found, such person shall not be delivered under the stipulations of this convention, until he shall have been tried, and shall have received the punishment due to such new crime, or shall have been acquitted thereof.” These are all the provisions of the convention which seem to have any bearing on the question under discussion. This convention was proclaimed by the president on the 1st of June, 1853. Under a provision inserted in it, for the accession of other states of the Germanic confederation, it has been acceded to by the Free Hanseatic City of Bremen, and the governments of Meeklenburg-Strelitz, Wurtemberg, Mecklenburg-Schwerin, Oldenburg, and Schaumburg-Lippe.
The question involved in this case turns upon the meaning, of the language of the first article of the treaty, that the contracting parties agree to mutually “deliver up to justice all persons who, being charged with,” certain crimes “committed within the jurisdiction of either party, shall seek an asylum, or shall be found, within, the territories of the other,” as that language shall be interpreted, in view of the entire language of the treaty, including the provisions of the third and fourth articles, and the language of the preamble, that the convention is entered into “for the better administration of justice, and the prevention of crime within the territories and jurisdiction of the parties respectively,” and in order “that persons committing certain heinous crimes, being fugitives from justice,” shall, under certain circumstances, be reciprocally delivered up.
For the purpose of arriving at a satisfactory conclusion, it will be useful to consider three classes of subjects, developed in treaties and laws of the United States, as throwing light on the intention of the United States, as one of the contracting parties, in the language used in the convention in question. The first subject is — prior and subsequent extradition treaties made by the United States, containing similar language. The second subject is — prior and subsequent treaties between the United States and foreign countries, respecting the jurisdiction of the United States over crimes committed in those foreign countries, and, also laws of the United States passed in pursuance of such treaties, and to carry them into effect. The third subject is — prior and subsequent laws of the United States respecting the jurisdiction of the United States over crimes not committed within the physical territory of the United States, other than laws passed in pursuance of the treaties la.st referred to.
The first treaty, providing for extradition, which the United States ever made, and the only one which it made for a long period, was the treaty with Great Britain, of the 19th of November, 1794 (8 Stat. 129), which was a general treaty, covering a large number of subjects, the 27th article of it containing the provision for extradition. That provision was in force for the period of twelve years only, when it expired by its own limitation. From that time down to the year 1842, a period of thirty-six years, this coun
The next treaty on the subject was the treaty with Great Britain, generally known as the “Ashburton Treaty,” of the 9th of August, 1842 (8 Stat. 576). That treaty is a general treaty, the 10th article of which contains a provision for extradition. The language is substantially the same as in the treaty of 1794. It provides that the parties shall “deliver up to justice all persons who, being charged with” murder and other offences specified, “committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other.” The change from the treaty of 1794 consists in the addition of the words, “or shall be found.” The treaty of 1794 says, “shall seek an asylum within any of the countries of the other.” The treaty of 1S42 says, “shall seek an-asylum, or shall be found, within the territories of the other.”
The next treaty on the subject of extradition was the first special convention the United States ever made with any country for the delivery of criminals. It was made with France, on the 9th of November, 1843 (8 Stat. 580). That special convention adopted a form of expression, both in the preamble and in the article for extradition, which has been followed as a model, substantially, in all the special conventions which have been since entered into by the United States with foreign countries, for extradition, all of which contain preambles in substantially the same language as the one with Prussia, now under consideration. This convention with France, of 1S43, which is the one still in force between the United States and France, says, in its preamble, that the parties have “judged it expedient, with a view to the better administration of justice, and to the prevention of crime, in their respective territories and jurisdictions, that persons charged with the crimes hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up.” The first article provides, that the “contracting parties shall, on requisitions made in their names, through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused -of the crimes enumerated in the next following article, committed within the jurisdiction of the requiring party, shall seek an asylum, or shall be found, within the territories of the other.” That language of the first article is substantially contained in all the special extradition conventions, and in all the other treaties in which there have been provisions for extradition, which have since been made.
The next treaty is the one with the Hawaiian Islands, of the 20th of December, 1849, which is a general treaty (9 Stat. 981), the 14th ar-tide of which contains a provision for surrender by the parties, of “all persons who, being charged with” certain specified crimes, “committed within the jurisdiction of either, shall be found within the territories of the other.”
Next in order of time comes the convention with Prussia, already referred to.
The next treaty after that was a special extradition convention with Bavaria, made on the 12 th of September, 1853 (10 Stat 1022). It is peculiar in its language. Like all the other special extradition conventions, it contains a preamble, but that preamble differs from those to which I have already referred, in stating, that the parties, “actuated by an equal desire to further the administration of justice, and to prevent the commission of crimes in their respective countries, taking into consideration that the increased means of communication between Europe and America facilitate the escape of offenders, and that, consequently, provision ought to be made in order that the ends of justice shall not be defeated, have determined to conclude an arrangement destined to regulate the course to be observed in all cases, with reference to the extradition of such individuals as, having committed any of the offences hereafter enumerated, in one country, shall have taken refuge within the territories of the other.” In the first article, it is agreed, that the parties shall “deliver up to justice all persons who, being charged with” certain specified crimes, “committed within the jurisdiction of either party, shall seek an asylum, or shall be found, within the territories of the other.” Thus, the words, “committed within the jurisdiction of either party,” are introduced in the first article, while, in the preamble, it is said, that the extradition is to be of “such individuals as, having committed” certain offences “in one country, shall have taken refuge within the territories of the otber.” This convention, it may be remarked, contains, in its third article, the provision in regard to not delivering up citizens or subjects, and, also, in its fourth article, the provision in regard to new crimes committed in the territories of the country where the party is found.
Two years after this special convention with Bavaria, a special convention was made with Hanover, January IS, 1S55 (10 Stat. 1138), which is identical in language with the convention with Bavaria. No others have ever been made on that model.
The next one in order is a treaty with the Swiss confederation, a general treaty (11 Stat. 593), in which, in the 13th article, there is a provision for extradition. That treaty was made on the 25th of November, 1850, and proclaimed on the 9th of November, 1855. It has no preamble. It contains a provision for the
The next in order is a treaty with the two Sicilies, of the 1st of October, 1855 (11 Stat. 651), a general treaty, the 21st article of which, in its provision for extradition, is peculiar in its language, in providing, “that every person who, being charged with, or condemned for, any of the crimes enumerated in the following article, committed within the states of one of the high contracting parties, shall seek asylum in the states, or on board the vessels of war, of the other party, shall be arrested and consigned to justice, on demand made, through the proper diplomatic channel, by the government within whose territory the offence shall have been committed.” This treaty is no longer in force, because the kingdom of the two .Sicilies has been incorporated into the kingdom of Italy, and there is a very recent extradition treaty between the United States and Italy, which supersedes the Sicilian treaty.
The next in order is a special extradition convention with Austria, made on the 3d of July, 1856 (11 Stat. 691). It is the same, in language, as the convention with Prussia, now under consideration.
The next is a special extradition convention with Baden, made January 30, 1857 (11 Stat. 713). That, also, is just like the one with i Prussia.
The next is a special extradition convention with Sweden and Norway, of the 21st of March, 1860 (12 Stat. 1125). That, also, is like the one with Prussia, in the particulars under | consideration. ¡
The next is a general treaty with Venezuela, of the 27th of August, 1860 (12 Stat. 1159), the 27th article of which contains provisions for delivery, similar in terms to those contained in the convention with Prance, before mentioned.
The next is a special extradition treaty with Mexico, of the 11th of December, 1861 (12 Stat. 1199). It is like the special convention with Prance, in its language, in the particulars already referred to, and not different, in substance, from the one with Prussia.
The next is a general treaty with Hayti, of November 3. 1861 (13 Stat. 727), in which the terms of the extradition provision (article 38) are the same as in the treaty with the Swiss Confederation.
The next is the treaty with the Dominican Republic, of February 8, 1867 (15 Stat. 488), the 27th article of which provides for extradition, in the same terms as the provision in the treaty with the Swiss Confederation.
The next is the special extradition convention with Italy, of March 23. 1868 (15 Stat. 629). It is substantially like the one with Prussia, in the particulars referred to, except that there is no provision in it for the non-delivery of subjects or citizens.
The next, and the last, is the special extradition convention with Nicaragua, of June 25, 1870 (17 Stat. 815), which is just like the one with Italy, in the particulars mentioned.
The summary of all these treaties, of which there are seventeen, exclusive of the treaty of 1794, with Great Britain, is, that in eight of them, which are special extradition conventions, (that is, those with France, Prussia, Austria, Baden, Sweden and Norway, Mexico, Italy, and Nicaragua,) there is a recital, in the preamble, that the object of the treaty is “the prevention of crime within the territories and jurisdiction of the parties respectively,” by the delivery up of “persons who are fugitives from justice.” It further appears, that, in fourteen treaties or conventions, (of which eight are these special extradition conventions,) the provisions as to delivery are for the delivery of persons charged with crimes committed within the “jurisdiction” of one of the parties, who shall seek an asylum, or shall be found, within the territories of the other. This provision is found in fourteen subsisting treaties of the United States, namely, those with Great Britain, Prance, the Hawaian Islands. Prussia, the Swiss Confederation, Austria. Baden, Sweden and Norway, Venezuela. Mexico, Hayti, the Dominican Republic, Italy, and Nicaragua, six of them being general treaties, with no previous recital in a preamble. Then there are the special cases to which I have alluded —the conventions with Bavaria and Hanover, which, in their preambles, speak about preventing the commission of crimes “in their respective countries,” and about offences committed “in one country.” and then provide for the delivery of persons charged with crimes committed “within the jurisdiction of either party,” who “shall seek an asylum, or shall be found, within the territories of the other.” Then there is the treaty with the two Sicilies, which contains the peculiar language which I have recited. It thus results, that, out of eighteen treaties, (or seventeen, excluding the one with Great Britain, of 1794,) all but one provide for the delivery of persons charged with crimes committed within the “jurisdiction” of one party, who shall seek an asylum within the territories of the other.
The second subject to which I referred was —prior and subsequent treaties between the United States and foreign countries, respecting the jurisdiction of the United States over crimes committed in those foreign countries, supplemented by laws of the United States passed in pursuance of the provisions of those treaties, and to carry them into effect. As I remarked before, the first special convention made between the United States and any country, for extradition, was that with Prance, made on the 9th of November, 1843, and contains the declaration, that it is made for the purpose of reaching persons committing crimes within the territories and jurisdiction of the one party, who shall become fugitives from justice, and shall seek an asylum, or be found, within the territories
On the 7th of May, 1830, the United States made a treaty with the Ottoman Porte, commonly called Turkey (8 Stat. 409), which contains a provision, in the fourth article, that citizens of the United States committing an offence in Turkey “shall not be arrested and put in prison by the local authorities, but shall be tried by their minister or consul, and punished according to their offence, following, in this respect, the usage observed towards other Franks.” Iso law of the United States was passed to carry that provision into practical effect until the year 184S. iMean-time, before the extradition convention with Prussia was made, and on the 3d of July. 1844, a treaty was made between the United States and China (8 Stat. 596), the 21st article of which provides, that “citizens of the United States, who may commit any crime in China, shall be subject to be tried and punished only by the consul, or other public functionary, of the United States, thereto authorized, according to the laws of the United States.” In view of those two treaties, one made in 1830, and the other in 1844, the congress of the United States, on the 11th of August, 1848, passed an act (9 Stat. 276) entitled, “An act to carry into effect certain provisions in the treaties between the United States and China, and the Ottoman Porte, giving certain powers to ministers and consuls of the United States, in those countries.” That act was passed four years before this treaty was made with Prussia, and it gives to the commissioner and the consuls of the United States, (the chief functionary of the United States in China at that time being called a commissioner and not a minister,) appointed to reside in China, power to try, in the manner provided in the act, all citizens of the United States charged with offences against law. that is, against the law of China, committed in the dominions of China. The 2d section of that act provides, “that, in regard to crimes and misdemeanors, the said public functionaries are hereby fully empowered to arraign and try, in the manner herein provided. all citizens of the United States charged with offences against law, which shall be committed in the dominions of China, including Macao, and, upon conviction, to sentence such offenders in the manner herein authorized; and said functionaries and each of them are hereby authorized to issue such processes as are suitable and necessary to carry this authority into execution.” The act also extends the laws of the United States, so far as is necessary to execute the treaty, over all eitizens of the United States in China, so far as such laws are suitable to carry the treaty into effect. It also authorizes the consuls of the United States in China to arrest any citizen of the United States charged with committing in China an offence against law, and to try him, and, on conviction, to punish him by tine or imprisonment; and, in cases of murder, and insurrection or rebellion against the Chinese government, with intent to subvert the same, to punish the offence with death, by executing the convict, if the commissioner shall issue a warrant for the purpose. The act also gives the same powers to the minister resident and consul of the United States in Turkey, in reference to crimes committed by citizens of the United States in Turkey, under the treaty of May 7th, 1830. It is to be noted, that this act was passed on the day before the act of the 12th of August, 1848, was passed (9 Stat. 302), which is one of the acts under which the proceedings- in the present extradition case are taking place. This act of August 12th, 1848, prescribes the course of procedure in the United States under extradition treaties, and provides for the issuing of a warrant and the holding of an examination, with a view to extradition, where complaint is made, charging “any person found within the limits of any state, district or territory, with having committed, within the jurisdiction of any such foreign government, any of the crimes enumerated or provided for by any such treaty or convention.” These treaties and the act to carry them into effect were in force when the convention with Prussia was made, in 1852.
A treaty was also made between the United States and Borneo, on the 23d of June, 1850, but not proclaimed until the 12th of July, 1854 (10 Stat. 910), the 0th article of which providers, that, “in all cases where a citizen of the United States shall be accused of any crime committed in any part” of the dominions of the sultan of Borneo, “the person so accused shall be exclusively tried and adjudged by the American consul, or other officer duly appointed for that purpose.” It does not appear that any law of the United States has been passed to carry this provision into effect.
Then, a treaty was made with Siam, on the 29th of May, 1856 (11 Stat. 684), the 2d article of which provides, that “criminal of-fences will be punished, in the case of American offenders, by the consul, according to American laws.”
Then came a treaty with Japan, of June 17, 1857. (11 Stat. 723), the 4th article of which provides, that “Americans committing offences in Japan shall be tried by the American consul-general or consul, an'1 shall be punished according to American lavvs.”
On the 29th of July. 1S5S. another treaty was made with Japan (12 Stat. 1056), the
These treaties with Japan and Siam, of 1S5G, 1S57 and 1S5S, made necessary a further act of congress, and an act was passed, on the 22d of June, 1800 (12 Stat. 72), covering the provisions of the treaties with China, Japan, Siam, and Turkey, in reference to criminal offences, and superseding the act of August 11th, 184S. This act of the 22d of June, 1800, contains substantially the same provisions which were embraced in the act of August 11th, 1848, applied to offences committed by citizens of the United States in China, Japan, Siam and Turkey, and providing for the jurisdiction of such offences by the ministers and consuls of the United States in those countries. This act has been put into practical execution. It appears, by the diplomatic correspondence of the United States, that one David Williams was tried and convicted in the consular court at Shanghai, for piracy and murder, in robbing and killing three Chinese. The United States minister to China, on the 23d of November, 1SG3, issued a warrant for his execution. On the 1st of March, 1804, a few hours before the time fixed for his execution, he committed suicide. One James White was tried and convicted in the consular court at Shanghai, on the 23d of November, 18G3, of the murder of Samuel Webster. A warrant was issued for his execution, but he broke jail and escaped, owing to the insufficient means provided for taking care of prisoners. A third, and more remarkable, ease was that of John D. Buckley, who, on the 22d of May, 1803, murdered, at Shanghai, John McKennon, a citizen of the United States, and the master of an American merchant ship. After the of-fence was committed, Buckley, under another name, took passage, at'Shanghai, for Havre, in France, on board of a French vessel. The vessel stopped at Nagasaki, in Japan. The American consul at Nagasaki applied to the French consul there, for permission to arrest Buckley. The French consul arrested Buckley and put him in the French prison, at Nagasaki, and the vessel went to France without him. The French consul laid the case before the French minister in Japan. He declined to surrender Buckley to the American minister in Japan, on the ground, that, under the extradition treaty between the United States and France, the surrender of the fugitive must be made by the French government at home, on the demand of the American government; but he offered to send Buckley to France, to await a demand there. The American minister in Japan then arranged to arrest Buckley when he should be discharged from the French custody in Nagasaki, and to send him to Shanghai, to be delivered to the American consul there, and the captain of a British government steamer agreed to take Buckley to Shanghai under guard, when he should be arrested. This was early in January, 1864. Shortly afterwards, Buckley surrendered himself to the American consul at Nagasaki, and was sent to Shanghai in such British government steamer. He was tried at Shanghai for the murder, on the 1st of February, 1804, before the American consul general, and four associates, and was convicted and sentenced to be hung. The United States minister in China, on the 11th of March, 1804, issued a warrant for his execution, and he was hung at Shanghai, on the 1st of April, 1804. The proceedings in Buckley’s case were approved by the president. Dip. Cor. 1864, pt. 3, pp. 392-419, 440, 474. 478, 479.
On the 14th of February, 1807, a treaty was made between the United States and Madagascar, (15 Stat. 492), the 5th article of which provides, that citizens of the United States shall, as to criminal offences committed, by them in Madagascar, be under the exclusive criminal jurisdiction of their own consul only, duly invested with the necessary powers. By the act of July 1, 1870 (16 Stat. 183), the Act of July 22. 1800. before mentioned, is, so far as it is in conformity with the stipulations of the said treaty with Madagascar, extended to that country, and to any country of like character, with which the United States may thereafter enter into treaty relations.
Such are the law and the facts in regard to these treaty provisions, the acts of congress thereon, and the practical execution of them, in respect to the jurisdiction specially conferred, by treaty, upon officers of the United States, in regard to crimes committed by citizens of the United States, wholly out of the physical territory of the United States, and not on board of vessels of the United States.
The third subject to which I referred was —prior and subsequent laws of the United States respecting the jurisdiction of the United States over crimes not committed within the physical territory of the United States, other than laws passed in pursuance of treaties, as showing an assumption by the United States of jurisdiction over of-fences committed outside, not only of the physical territorial limits of the United States, but outside of the quasi territorial limits of the United States, and outside of territorial limits granted by treaty.
We are entirely familiar with the jurisdiction exercised over offences committed on vessels, a vessel being regarded as a part of the country whose flag she bears. There are many acts of the kind passed by the congress of the United States. One is the act of April 30, 1790 (1 Stat. 113), the 8th section of which provides: “That, if any person or persons shall commit upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state,
But. the United States has gone further. There is a statute passed on the 18th of August, 1856 (11 Stat. 61), the 24th section of which provides, that a person who takes a false oath before a secretary of legation or consular officer of the United States in a foreign country, shall be deemed guilty of perjury, and “may be charged, proceeded against, tried, convicted, and dealt with, in any district of the United States, in the same manner, in all respects, as if such offence had been committed in the United States.” This language plainly recognizes it to be the fact, that, under such circumstances, the of-fence is not committed in the United States. The jurisdiction in such case, therefore, is not assumed upon the theory that the offence is committed within the territory of the United States, or within the quasi territory of the United States, or within territory as to which jurisdiction is conferred by a treaty between the United States and a foreign power, and the act is not confined to an offence committed by a citizen of the United States. The jurisdiction is entirely outside of any such support.
So, in the Act of June 22, 1860, before referred to, it is provided, by the 30th section (12 Stat. 78), that the consuls and commercial agents of the United States, at islands, or in countries, not inhabited by any civilized people, or recognized by any treaty with the United States, shall have authority to try-offences and misdemeanors committed by citizens of the United States, and punish them by fine or imprisonment. This provision does not rest on any theory of territory, or quasi territory, or on any jurisdiction conferred by treaty. It apparently rests on the same principle on which the statute of Prussia, referred to in the present case, is founded — the right of a state to punish its own citizens, in respect of crimes committed by them abroad, even in places where it has no physical territorial jurisdiction, no quasi territorial jurisdiction, and no treaty jurisdiction. There may be other acts of congress bearing on the subject, but those cited are sufficient to illustrate the principle on which the claim for extradition in the present case is rested.
The statute of Prussia provides, that there may be prosecuted and punished according to the criminal law of Prussia, a Prussian who, in a foreign country, has committed an act which, according to the laws of Prussia, is to be considered a crime or misdemeanor and which is punishable by the laws of the place where it has been committed, with the restriction, that there shall be no prosecution if the court of the foreign country has adjudicated on the act. and an acquittal or punishment has taken place; or if, according to the laws oi the foreign country, the time limited for prosecution or punishment has expired, or the punishment has been remitted; or if. according to the laws of the foreign country a request of the injured person is required, ana such request has not been made.
The acts of the congress of the United States recognize, therefore, the principle of punishing, by the laws of the United States, offences committed by citizens of the United States outside of the physical territory of the United States, and outside of a vessel bearing the flag of the United States, and outside of any place which can be called the quasi territory of the United States, by virtue of a treaty It follows, that the United States recognizes and did recognize, when this convention with Prussia was made, a jurisdiction to try offences, at least when committed by citizens of the United States, which extends to offences committed outside of the physical territory of the United States. Hence, there was and is a subject-matter, recognized by the United States, for the operation of a distinctii n between the word “jurisdiction” and the word “territories,” when those two words are used in treaties, in juxtapositior, and yet in contrast.
In this connection, it is not inapt to remark that the language used in this treaty with Prussia, and in the other treaties between the United States and foreign countries, .is also found in \ anous treaties between European countries, in regard to extradition. In the extradition treaty between Great Britain and France, of February 13th. 1843. the preamble states, that the parties “have judged it expedient., with a ,-iew to the better administration of justice, and to the prevention of crime within their respective territories and jurisdictions, that persons charged with the crimes hereinafter enumerated, and being fugitives from justice, shall, under certain circumstances, be reciprocally delivered up." The treaty then provides, that the parties shall “deliver up to justice persons who, being accused of” the crimes specified, “committed within the jurisdiction of the requiring party, shall seek an asylum, or shall be found, within the territories of the. other.” The treaty of May 28th, 1852, between Great Britain and France, provides, that they shall “deliver up to each other, reciprocally, any persons, except native subjects or citizens of the party upon whom the requisition may be made, who, being convicted or accused of any of the crimes hereinafter specified, committed within the jurisdiction ot the requiring party, shall be found within the territories of the other
The question, then, arises, whether there is anything in the language of this treaty with Prussia, and of other treaties containing like language, or in the rules of interpretation laid down in any decisions which have been cited on the subject, to restrict the operation of the distinction to which I have referred, between the word “jurisdiction” and the word “territories,” and to prevent the giving to the word “jurisdiction” an enlarged meaning, equivalent to the words, “authority, cognizance, or power of the courts.” Prussia gives such construction to the word “jurisdiction,” as used in the treaty with her, by the very fact, that, having established by law the jurisdiction referred to, she demands the extradition of this prisoner. There certainly is nothing in the language of the treaty that requires any such restriction, because, in the first article of the treaty, wheie the agreement for delivery is found, the language is, specifically, that those persons shall be delivered up, who have committed the designated crimes within the “jurisdiction” of the requiring party, and shall be found within the “territories” of the other party. If it had been intended to limit the extradition to cases of crimes committed within the “territories” of the requiring party, it would have been easy to say so. as in the treaty with the Two Sicilies, where the designation is, crimes “committed within the states of one of the high contracting parties.” But, there being a subject-matter for the operation of a meaning to the word “jurisdiction,” beyond the meaning of the word “territory,” we find that the preamble to the treaty uses the words “territories and jurisdiction,” stating the object of the treaty to be “the prevention of crime within tes territories and jurisdiction of the parties respectively.” It cannot be predicated of this language, that the word “territories” and the word “jurisdiction” are used as synonymous words. It is a reasonable construction, that the word “jurisdiction” is ampler in its scope than the word “territories,” and that the two words, used in juxtaposition in both the preamble and the first article, are used in contrast and in different senses
The principle of enlarged jurisdiction, to which I have referred, is recognized by judicial authority. In Holmes v. Jennison, 14 Pet. [39 U. S.] 540, 568, 569, Chief Justice Taney says, that the states of the Union “may, if they think proper, in order to deter offenders from other countries from coming among them, make crimes committed elsewhere punishable in their courts, if the guilty party shall be found within their jurisdiction ” In Re Tivnan, 5 Best & S. 645, 679, Chiet Justice Cockburn says: “An offence maybe cognizable, triable and justiciable in two places, e. g., a murder by a British subject in a foreign country. A British subject who commits a murder in the United States of America may be tried and punished here by our municipal law, which is made to extend to its citizens in every part of the world.”
Some authorities were cited on the hearing, as having a bearing on the question involved, and as tending to a contrary conclusion from that which seems to me the proper and necessary one in this case.- The first one is the opinion of Attorney-General Charles Lee, in 1798 (1 Op. Attys. Gen. 83), on a question arising under the extradition provision in the treaty with Great Britain of 1794. That treaty used the language, before cited, that persons shall oe delivered up to justice, who, being charged with crimes “committed within the jurisdiction” of either party, shall “seek an asylum withiD any of the countries of the other.” In his oninion, the attorney-general suggests, that that language means, that the crime must be committed within the territorial jurisdiction of the one nation, and that the person charged with the crime must seek refuge in the territorial jurisdiction of the other nation. On. looking into the opinion, it appears, that the demand was made for persons charged with “murder or piracy.” The a ttornej--general states, that it did not appear whether the offence was committed within the jurisdiction of England or any of the British dominions, or on the high seas. He says, that the criminal tribunals in the United States are fully competent to try and punish persons who commit murder on the high seas, or piracy; and he refers to the statutes of the United States on that subject. In that case, one of the offenders was a citizen of the United States, and all of them were in the custody of its officers of justice; and the attorney-general says, that, as the offenders are triable in the courts of the United States, and are in the custody of its laws for trial, he deems it “more becoming the justice, honor, and dignity of the United States, that the trial should be in our courts.” It is very clear, that the prisoner in th j present case cannot be tried in the United States, for the crimes with which he is charged.
The next case cited is the opinion of Attorney-General Cushing (8 Op. Attys. Gen. 215), which relates to the case of a person whose extradition was asked for by the French minister. He was charged as an accomplice in
The most important case cited is the case of the pirates of the American schooner Joseph E. Gerity, decided, on habeas corpus, by the court of queen’s bench, in England, in 1SS4. In re Tivnan, 5 Best & S. 645. That was a case where a demand was made by the government of the United States, for the extradition of the prisoners, as being “charged with piracy on the high seas, within the jurisdiction of the United States.” The British government issued a mandate for their arrest. They were arrested and brought before a magistrate, and evidence was taken as to the charge. After that, a writ of ha-beas corpus was issued, and the prisoners were brought before the court of queen’s bench. It was contended, for them, that the case was not within the treaty of August 9th, 1S42, between Great Britain and the United States. That treaty provides, that the parties shall, on mutual requisitions, deliver up to justice all persons who, being charged with the crime of “piracy,” or other specified crimes, “committed within the jurisdiction of either” of the parties, shall seek an asylum, or be found, within the territories of the other. It was claimed, by the United States, in that case, that the crime was committed within the jurisdiction of the United States. It was committed on the high seas, on board of an American vessel, which had sailed from Matamoras for New York, by persons who sailed on board of the vessel as passengers. The case was argued before four judges of the court, on the construction of the treaty, and the prisoners were discharged by the concurring judgment of three of the four judges, Judges Crompton, Blackburn and Shee being in favor of the discharge, on the ground that the case was not within the treaty, and Chief Justice Cockburn dissenting. It is apparent, from an examination of the remarks of the three judges who concurred in discharging the prisoners, that the case is not one in point on the present question, and that the prisoners were discharged on the ground that the crimes with which they were charged were, in fact, within the jurisdiction of Great Britain as well as of the United States, and that the word “jurisdiction,” in the treaty, meant the exclusive jurisdiction of one party as against the other party, and did not mean a jurisdiction which was shared by both of the parties. That is the ground on which the men were discharged. Hr. Justice Crompton says, in his judgment, speaking of the language of the statute of Great Britain on the subject (6 & 7 Vict. c. 76). which is the language of the treaty: “Looking at the preamble, which, at all events, can be used as a key to the statute, we find these words in it, ‘persons who, being charged with the crime of murder. &c., or piracy. &e., committed within the jurisdiction of either of the high contracting parties.’ This looks as if persons within the jurisdiction of one of the parties, and not of the other, were intended, ‘should seek an asylum or should be found, within the territories of the other.’ ” “ ‘Asylum,’ means a place where the matter may not be tried. The statute then provides for the delivery up to justice of any person charged with the crime of murder, &c., or with the crime of piracy, &C., committed within the jurisdiction of the United States of America, who shall be found within the territories of her majesty. ‘Committed within the jurisdiction of the United States of America,’ I own, appears to me to mean, within the peculiar jurisdiction of the United States, and would not be properly used, if the common jurisdiction oí every maritime nation in the world were meant." He then says, that the case before them is a case of piracy by the law of nations. He adds: “Is this a piracy within the words of the statute? It is to be within the jurisdiction of the United States; but does that mean within the jurisdiction which the whole world shares with them?” He then goes on to make an observation which clearly shows that he did not intend to lay down any principle which would cover a case like the present one. He says: “It must mean, where they have a peculiar jurisdiction; although, whether that would apply to all cases where we have jurisdiction in foreign countries, we need not determine. * * * It is very difficult to my mind to suppose that two of the great maritime nations of the world meant to give up their power of trying pirates wherever caught. * * * These persons are not pirates of one natiOD or another, but pirates against every nation.” The remarks of Mr. Justice Blackburn show that he took the same view of the case, and was in favor of the discharge of the prisoners on the same ground. He says, that, looking at the words alone, “committed within the jurisdiction of either of the high contracting parties,” they mean crimes 'committed within the jurisdiction of one party, and not within a common jurisdiction. Quoting the words, “committed within the jurisdiction of the United States,” he says: “Does that mean within the jurisdiction of one party exclusively? I do not say how that would be in the case of a murder committed within the United States by a British subject, over whom we have a personal jurisdiction. * * * This is a question of piracy, which does not depend upon any personal, but on general jurisdiction. '* * * Piracy, under the law of nations, is
Under tne treaty of 1842. between the United States and Great Britain, the United States has recognized its obligation to deliver up to Great Britain persons charged with the commission, on the high seas, on board of British vessels, of offences made crimes by the statute law of Great Britain, and not offences against the law of nations. In the case of In re Sheazle [Case No. 12,-734], in 1845, subjects of Great Britain had committed, on board of a British vessel, on the high seas, the crime of piracy, as created by act of parliament, and not piracy under the law of nations. The discharge of the prisoners was sought, on habeas corpus, but it was held, that the case was one within the treaty, and they were remanded to custody, a warrant having already been issued by the department of state for their delivery to the authorities of Great Britain. In the case of In re Bennett, 11 Law T. 488, in 1864, a person charged with having committed the crime of murder, on board of a British vessel, on the high seas, was committed for extradition by a United States commissioner in New York, after an examination. The ease of In re Tivnan was there cited, but was held to have no application, on the ground that murder on the high seas, committed on board of a British vessel, was not an of-fence within the concurrent jurisdiction of both the United States and Great Britain.
In the present case, the language of the treaty is broad enough to cover the extradition asked. When force and meaning are given to the words “fugitives from justice,” “delii er up to justice,” and “seek an asylum,” which are found in this treaty, certainly where the person whose extradition is sought cannot be tried or punished in the territory where he is found, for the crime charged. no reason exists why any court should strain after a construction which would prevent the delivery up of the person to a jurisdiction where he may be tried for the offence, provided the language of the treaty fairly covers the case.
This treaty, and other treaties like it — and nearly all the extradition treaties which we have are modeled upon this treaty with Prussia, and on the previous one with France —are not liable to abuse. In the first place, under this treaty with Prussia, citizens of the United States need not be surrendered. The dignity and authority of the United States are further preserved by the provision, that a person is not to be surrendered who has committed a new crime in the United States, until he has been tried here for it, and been convicted, and suffered the punishment due to it. or been acquitted. Moreover, giving full force to the expressions, “fugitives
■ On this view, of the subject, in all its relations and bearings. I am entirely satisfied, that the present case is within this treaty, and that the writs ought to be discharged, and thv prisoner be remanded to the custody of the marshal.